Francis Mooney v. His Majesty’s Advocate [2024] HCJAC 1

Note of appeal against conviction:- On 5 May 2023, at Paisley High Court, the appellant was convicted after trial of a contravention of sections 1(1)(a) and 4(4) of the Firearms Act 1968 as amended by the Firearms Amendment Act 1988, namely, purchasing and having in his possession a firearm to which Section 1 of the 1968 Act applies without holding a firearms certificate and committing the offence in an aggravated form as the barrels of the firearm had been shortened to a length less than 60.96 centimetres or 24 inches. The appellant appealed against his conviction on two grounds:- (1) that the trial judge had erred in refusing a ‘no case to answer’ submission at the close of the Crown case there being insufficient evidence to identify the appellant as the perpetrator of the crime libelled; and (2) that the trial judge’s charge contained a material misdirection which resulted in a miscarriage of justice. In relation to the issue of identification it was recognised on behalf of the appellant that since PC Dinnen’s identification of the appellant had been clear and unequivocal little more was needed to corroborate it. It was submitted, however, that the only other evidence available to the Crown to corroborated PC Dinnen’s evidence was evidence from PC Paterson who identified the appellant as one of two men who remained after another male, Eadie, ran off after what appeared to be an exchange of the firearm. Furthermore, all the identification by PC Paterson did was confirm that the appellant had been one of the two men who met with Eadie and did not corroborate PC Dinnen’s evidence of the appellant as the perpetrator of the crime. On behalf of the Crown it was submitted, having regard to Ralston v. H.M.A. 1987 S.C.C.R 467 in light of the emphatic identification by PC Dinnen little more was needed to corroborate that identification evidence. It was submitted that PC Paterson and the CCTV footage provided corroboration, namely, that PC Paterson spoke to the appellant being one of the two men left when Eadie ran off and the CCTV footage which showed that it was the man wearing the gilet and cap who used his telephone who took the bag from Eadie, and who was apprehended by the driver of PC Dinnen’s police car who PC Paterson confirmed was PC Dinnen. The second ground of appeal contended that the trial judge had misdirected the jury when she directed them that they could use the CCTV evidence to corroborate PC Dinnen’s identification of the appellant as the quality of the footage was insufficient to allow the jury to make an identification for themselves and it followed that there was nothing in the footage which the jury could use to corroborate PC Dinnen’s identification. On behalf of the Crown it was submitted there had been no misdirection in the direction that the footage taken together with PC Paterson’s evidence could corroborate PC Dinnen’s identification of the appellant. Here the court refused the appeal. In relation to the first ground of appeal the court noted that the provenance of the CCTV footage was subject to agreement in a joint minute and became real evidence in the case which itself was sufficient proof of the inferences of fact which could reasonably be drawn from it. The court also reiterated, under reference to Mitchell v. H.M.A. S.C.C.R. 469, that in assessing sufficiency and whether evidence is capable of affording corroboration the correct approach is to take the evidence led by the Crown at its highest and for circumstantial evidence to be interpreted in the way most favourable to the Crown and where there is an emphatic identification little more is needed to corroborate that evidence. The court considered that the evidence of PC Paterson and the CCTV footage relied upon by the Crown was sufficient to corroborate PC Dinnen’s clear and unequivocal identification of the appellant. Under reference to the Lord Advocate’s Reference No 1 of 2023, 2023 S.C.C.R. 340 the court stated all that is required for corroboration is evidence which provides support for, or confirmation of, or fits with the main source of evidence and it is then a matter for the jury to decide if it does provide corroboration. In relation to the second ground of appeal the court did not consider that there had been any material misdirection by the trial judge as the footage showed that the man wearing the gilet and cap who had spoken on the phone had taken the bag containing the firearm, that the driver of the first police car was the person who took him to the ground and the combination of that footage and PC Paterson’s evidence that it was PC Dinnen who was the driver of the police car was capable of providing confirmation/support of PC Dinnen’s identification evidence.